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2005 DIGILAW 348 (GAU)

Rajkamal Choudhury v. State of Assam

2005-05-02

P.G.AGARWAL

body2005
JUDGMENT P.G. Agarwal, J. 1. Heard Mr. B. Chakraborty, learned Counsel for the accused Appellant and Mr. B. Sinha, the learned P.P. 2. This appeal is directed against the judgment and order dated 15.7.2004 passed by the Ad hoc Addl. Sessions Judge, Karimganj in Sessions Case No. 73/2003 (GR Case No. 213/2002) whereby the accused Appellant was convicted Under Section 498(A)/306 IPC and sentenced to imprisonment for five years and to pay a fine of Rs.5,000/- in default further imprisonment for three months Under Section 306 IPC. The accused Appellant was also sentenced to imprisonment for six months and to pay a fine of Rs.1,000/- in default further imprisonment for one month Under Section 498(A) IPC. Both the sentences were ordered to run concurrently. 3. The facts in brief is that the accused Appellant Rajkamal Choudhury @ Babu Choudhury is the husband of Shanta Choudhury. The said Shanta Choudhury committed suicide by drowning in the well situated within the compound of the accused Appellant on 28.2.2002, i.e., within seven years of the marriage as we find that the marriage was solemnized between the parties some time in the year 1998. The brother of the deceased thereafter filed a written FIR alleging interalia that since the solemnization of the marriage, the accused Appellant and his mother Rekha Chowdhury used to torture the deceased, both physically and mentally in respect of dowry demand and other domestic affairs as a result of which the deceased was forced to commit suicide. Police conducted usual investigation and submitted charge sheet and the two accused were tried for commission of offence Under Section 498(A)/304(B) IPC. 4. During trial, the prosecution examined as many as nine witnesses. The defence did not adduce any evidence. One Bijananda Singh was examined as Court witness No. 1. On conclusion of the trial, the learned trial Court acquitted accused Rekha Chowdhury and convicted and sentenced the accused Appellant as stated above. Hence the present appeal. 5. In this case, the factum of marriage between the accused Appellant and the deceased Shanta Chowdhury solemnized in the year 1998 is not in dispute. There is also overwhelming oral and medical evidence on record that the said Shanta Chowdhury died on 28.2.2002 by way of drowning. 6. P.W. 1 is Dr. Hence the present appeal. 5. In this case, the factum of marriage between the accused Appellant and the deceased Shanta Chowdhury solemnized in the year 1998 is not in dispute. There is also overwhelming oral and medical evidence on record that the said Shanta Chowdhury died on 28.2.2002 by way of drowning. 6. P.W. 1 is Dr. Krishna Prasanna Sinha who held the autopsy over he dead body and found as follows: An average built female body whose rigor mortis was present, eyes closed, mouth half opened, ears cleared, nostrils contained fine white tenacious froth, abrasion present over the chin with presence of inflammatory change. Her both hands were found clenched and empty. No other sign of external injury could be detected. Thorax: Watis, ribs and cartilages were healthy; pleurae found healthy, larynx and trachea were found congested contained white fine tenacious froth, right lung and left lung found congested, pericardium congested; heart healthy and contained blood in all chambers, vessels healthy. Abdomen: Walls healthy; peritoneum congested; mouth pharynx oesophagus healthy, stomach and its contents healthy and contained liquid materials; small intestine healthy and contained liquid materials; large intestine healthy and found empty. Cranium and spinal canal: Scalp, skull, vertebrae, membrane, brain and spinal cord were found healthy; liver, spleen and kidneys were found healthy; bladder healthy and empty; organs of generation healthy. The deceased was found pregnant at that time. Ulteras found eight week size and contained product of conception. Muscles, bones and joints: No injury found. 7. In the opinion of the doctor, the death was due to asphyxia, i.e., suffocation, due to drowning in the water, as, in course of autopsy there was found liquid materials both in stomach and in small intestine. In his cross examination the doctor has also further stated that such kind of death may occur by self-drowning in the pond, well, river etc. 8. As regards the cause of death, the medical evidence is that the deceased Shanta died due to drowning and it may be a case of homicide. The dead body was found in a katcha well situated with the premises of the accused Appellant and this has been admitted by the accused Appellant in the statement Under Section 313 Code of Criminal Procedure. The dead body was found in a katcha well situated with the premises of the accused Appellant and this has been admitted by the accused Appellant in the statement Under Section 313 Code of Criminal Procedure. The accused has stated in his statement Under Section 313 Code of Criminal Procedure that there was a katcha well wherefrom they used to collect water and after recovery of the dead body, he went to see the well and found that the southern portion of the well is in broken condition and as they used to collect water generally from the southern portion, he got an impression that his wife might have accidentally slipped and fell into the well. Admittedly, the accused was not present in the house when the incident took place and we find that the accused person merely apprehends that his wife might have fell into the well accidentally. So far the alleged breach of the southern bank of the well is concerned, the plea was raised for the first time in the statement Under Section 313 Code of Criminal Procedure and no supporting evidence was led by the defence. As a matter of fact, none of the prosecution witnesses were given a suggestion to that effect. 9. In this case, the Investigating Police Officer after recovery of the dead body from the well prepared a sketch map and in the sketch map there was no mention about breach of the southern bank of the well and we also find that the Investigating Police Officer was not cross examined on that point. 10. In view of the above, we have no hesitation whatsoever to hold that this is not a case of accidental slip but the deceased committed suicide by falling into the well. 11. Now coming to the question of alleged cruelty and harassment due to demand for dowry, there is evidence of Subrata Bhattacharjee (P.W. 2) who is brother of the deceased Shanta Chowdhury. He had deposed that after one year of the marriage, the accused Appellant and his mother used to commit physical and mental torture on the deceased in respect of the dowry and other family matters. He had deposed that after one year of the marriage, the accused Appellant and his mother used to commit physical and mental torture on the deceased in respect of the dowry and other family matters. Shanta gave birth to a female child after one and half years of the marriage and since the birth of the female child, she used to be taunted and blamed as to why she could not give birth to a male child. Shri Bachchu Bhattacharjee (P.W. 3) is Anr. brother of the deceased and he has also fully supported the statement of P.W. 2. 12. Shri Jawaliar Chakraborty (P.W. 4) is a neighbour of the accused Appellant. He has deposed that about one and half months prior to the incident, he was reported by the deceased that her husband used to assault her and harass her. Jutika Chakraborty (P.W. 5) is Anr. witness who was personally present at the time of recovery of the dead body from the well and it was reported that the deceased used to report her about the quarrel taking place between her and the accused Appellant. Sanjib Deb (P.W. 6) is Anr. neighbour of the accused Appellant. It was he who informed police about the dead body in the well. The witness has deposed that he used to hear hulla-chilla in the house of the accused Appellant and he had seen Rajkamal Chowdhury assaulting his wife Shanta and when he tried to intervene, the accused used to say that he is assaulting his own wife and as such P.W. 6 should not intervene in the matter. After the incident, P.W. 6 informed the matter to the family of Shanta. He also deposed that the house of the accused Appellant is situated at a distance of 30/35 cubits from the house of P.W. 6. 13. So far the demand for dowry is concerned, there is no materials on record and we find that the trial Court rightly held that no case Under Section 304(B) IPC is made out. As regards the cruelty, we find that there is tale tell evidence of the prosecution witnesses as stated above and although P.W. 2 and P.W. 3 are brothers, the evidence of P.W. 6, one of the neighbours, is clinching. He was eye witness to the incident and his evidence does not suffer from any infirmity. As regards the cruelty, we find that there is tale tell evidence of the prosecution witnesses as stated above and although P.W. 2 and P.W. 3 are brothers, the evidence of P.W. 6, one of the neighbours, is clinching. He was eye witness to the incident and his evidence does not suffer from any infirmity. There is no contradiction or material omission in his statement and he has deposed as to what he used to see. 14. In the present case, we find that besides the oral testimony, there is a suicide note left behind by the deceased in the form of writing in a slate. M. Ext. 1 is the said slate and it was seized by police from the house of the accused soon after the recovery of the dead body. P.W. 9 the I/O and other prosecution witnesses have deposed to that effect and it was shown to the brothers of the deceased. At the time of making inquest, the brothers have stated that the handwriting in M. Ext. 1 is that of their sister. M. Ext. 1 was thereafter photographed and the above photographs have also been produced before the Court and also marked as Ext. The writings in the said slate were in Bengali and the trial Court has translated the same and it read, as follows: Mashimoni (aunt) for give me I can't live any more domestic unhappiness unbearable I want to die god, as if, let me die you all will take care of my daughter those mother and son, as if, live in peace they put me much hardship as if, they live in peace. If something happened to me those mother and son will be liable and if any accident is occurred to Pinak Deb they will do it. I will not see their face as if, do not see my face. 15. The learned Counsel for the accused Appellant has submitted that M. Ext. 1 was not sent to handwriting expert and as such it can not be accepted as the statement of the deceased. PW 2 has deposed that the writings in M. Ext. 1 were read by him as it was written in Bangla and he knows to read Bangla and these were the handwritings of his late sister Shanta. The evidence of this witness on this point was not challenged except giving a suggestion. Admittedly, M. Ext. PW 2 has deposed that the writings in M. Ext. 1 were read by him as it was written in Bangla and he knows to read Bangla and these were the handwritings of his late sister Shanta. The evidence of this witness on this point was not challenged except giving a suggestion. Admittedly, M. Ext. 1 does not contain the signature of the deceased nor the names of the two accused Appellants. The signature on M. Ext. 1 is not a must when the writings in M. Ext. 1 are in the handwriting of the deceased. So far the absence of the names in concerned, this is also not relevant as the hand writing of the deceased implicated the mother and son in the M. Ext. 1. M. Ext. 1 is very specific and this relates to the two accused persons, i.e., the husband and his mother. We, therefore, concur with the finding of the trial Court that the writings in M. Ext. I have been established as required Under Section 67 of the Evidence Act. 16. The statement as quoted above appearing in M. Ext. 1 as well as the photographs are admissible an evidence Under Section 14 as well as Under Section 32 of the evidence act. The trial Court has considered the admissibility Under Section 14 of the Evidence Act. But we find that Section 32 of the Evidence Act is also applicable as the statement meets the requirement Under Section 32 of the Evidence Act as it relates to the cause of death of the deceased. 17. In view of the law regarding admissibility of dying declaration as laid down in the case of State of Rajasthan v. Bhup Singh reported in (1997) 10 SCC 675 and in the case of Laxmi v. Om Prakash reported in AIR 2001 SC 2383 , we hold that even the dying declaration is sufficient to base conviction. In the present case, the dying declaration is in the handwriting, of the deceased and it was written by her just before her death. Thus, there is no question of concoction or tutoring. It also finally rules out the possibility of accidental death and the deceased being unable to bear the cruelty, harassment and torture took the easy way out by ending her own life by jumping into the katcha well. 18. Thus, there is no question of concoction or tutoring. It also finally rules out the possibility of accidental death and the deceased being unable to bear the cruelty, harassment and torture took the easy way out by ending her own life by jumping into the katcha well. 18. Now coming to the defence plea that this is a case of accidental death and the accused Appellant who was not present in the house at the relevant time is entitled to benefit of doubt. The learned Counsel for the Appellant has placed reliance on a decision of the apex Court in the case of Narendra Singh v. State of M.P. Reported in 2004 SAR (Criminal) 597 wherein the Apex Court held as follows: We, thus, having regard to the post mortem report, are of the opinion, that the cause of death of Bimlabai although is shrouded in mystery but benefit thereof must go to the Appellants as in the event of there being two possible view, the one supporting the accused should be upheld. 19. The learned Counsel for the Appellant has also placed reliance on Anr. decision of the Apex Court in the case of Dasari Prasad Reddy v. The Public Prosecutor, High Court of A.P., reported in 2004 SAR 801. 20. The above cases were decided on the basis of the evidence and materials. So far the ratio of law is concerned, there is no dispute at the bar that suspicion, however, strong it maybe, cannot be the basis for conviction and where two views of a litigation is available or possible, the view favouring the accused should be adopted. However, in the present case, there is no doubt as regards the cause of death which was due to drowning. It was a case of commission of suicide by the young housewife. There is tale tell evidence as regards the harassment and cruelty to the young housewife. There is dying declaration of the deceased in the form of M. Ext. 1. The death of the deceased took place under suspicious circumstances within seven years of the marriage and in view of the evidence regarding cruelty and harassment presumption Under Section 113-A of the Evidence Act is available to the prosecution. 21. In view of the aforesaid discussion and decision, we hold that the offence has been well established and there is no merit in this appeal. 21. In view of the aforesaid discussion and decision, we hold that the offence has been well established and there is no merit in this appeal. So far the sentence is concerned, the accused has been treated considerably and no further interference is called for. The appeal stands dismissed. Appeal dismissed.